Obama Fails to Justify the Legality of War in Libya

In a letter to John Boehner and a 38-page report, the White House could not prove it complied with the War Powers Resolution

Is the U.S. at war in Libya, putting President Obama in violation of the War Powers Resolution? Or does our mission against Muammar Qaddafi fall short of triggering the statute that requires withdrawal within 60 to 90 days unless Congress approves military action? The White House took up those questions Wednesday in response to House Speaker John Boehner, who demanded to know why we're still involved in the NATO-led conflict despite those bygone deadlines.

Its answers took these forms: a presidential letter to lawmakers, a 38-page report defending administration behavior, and a flurry of insistent sound bites. "We are in no way putting into question the constitutionality of the War Powers Resolution," one senior administration official explained to reporters on a conference call. "We are not engaged in any of the activities that typically over the years in War Powers analysis has considered to constitute hostilities within the meaning of the statute. We're not engaged in sustained fighting, there's been no exchange of fire with hostile forces, we don't have troops on the ground, we don't risk casualties to those troops."

And here is Obama in his letter to Boehner:

The initial phase of U.S. military involvement in Libya was conducted under the command of the U.S. Africa Command. By April 4, however, the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition's efforts. Since April 4, U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition's efforts.

It all sounds persuasive, doesn't it? But the arguments just quoted, the contents of the letter, and the 38 page report do more to confirm that President Obama has acted illegally in waging an ongoing war than to refute that serious charge. Alas, we're talking about rhetoric prepared by a team of executive branch lawyers and bureaucrats, so untangling its flawed logic, various attempts at misdirection, and Orwellian locutions is going to require effort. Are you up for understanding why Libya is an illegal conflict and how Obama is trying to obscure that?

In the Obama administration's narrative, the U.S. launched its combat operations on March 19 to help establish a no-fly zone authorized by the UN and to stop Qaddafi's forces from advancing on Benghazi, a stronghold of regime opponents the dictator vowed to slaughter. The administration neglects to mention that CIA agents were in the country prior to that date meeting with rebels and gathering intelligence -- or that President Obama had authorized them to supply arms to the rebels.

The White House does acknowledge these facts: the total projected cost for Pentagon operations in Libya is $1.1 billion; the U.S. has so far spent roughly $750 million, more than $398 million on munitions alone; since March 31, when the White House said that operations had been handed off to NATO, more than 2,500 sorties have been flown by American pilots, including at least some "strike sorties"; unmanned American Predator drones are also flying missions over Libya to this day; the U.S. still provides nearly 70 percent of NATO's intelligence capabilities and a majority of its refueling capability. Imagine that a country launched a series of bombing attacks on the US to force one of our presidents from office, and that a second country provided millions of dollars in munitions, fired missiles at our cities via unmanned drones, and refueled the planes of our primary attacker so that they could bomb us more frequently. Would anyone doubt whether that second country was at war with us? What if they insisted it was "non-kinetic military support?"

There's your Orwellian locution. But it isn't illegal to misleadingly characterize a foreign military conflict. So what is it exactly that puts the White House on the wrong side of the law? Passed in 1973, the War Powers Resolution was intended to check the president's ability to commit U.S. forces abroad without obtaining congressional approval. Its defenders say that the Constitution gives Congress the power to declare war, and that constraining presidential war-making is its prerogative. Critics of the statute insist that it impinges on the president's inherent powers as commander in chief. Unlike some of his predecessors, President Obama acknowledges that he is bound by the War Powers Resolution. In my estimation, he is correct. Rather than explain why, I'll just ask readers who disagree to regard the rest of this piece as a persuasive case that Obama is willfully transgressing against his legal obligations as he understands them.

Here is the core of the Obama administration's surprisingly weak case that it is in compliance with the law, as stated in its 38 page report:

Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad.

The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

The weakness of this argument is fully apparent if you read the actual text of the War Powers Resolution and realize that whoever crafted the White House report counted on your never doing so.

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

The situation in Libya was never a national emergency created by an attack on the United States. So President Obama was in violation of this law he claims to uphold right from the beginning.

Here's a reporting provision that is triggered anytime U.S. forces are deployed "into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces." Here's the most discussed provision, which kicks in after a president reports to Congress that he has launched a military action:

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted.

Another apparent violation -- but as noted, the White House vaguely claims that our actions in Libya are "distinct from the kind of 'hostilities' contemplated by the Resolution's 60 day termination provision."

Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred ... from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this chapter.

It goes on to state:

For purposes of this chapter, the term "introduction of United States Armed Forces" includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.

What's evident from all this is that President Obama's argument for why he is in compliance with the War Powers Resolution is mostly made up of irrelevant assertions. It doesn't matter that our Predator drone strikes are limited, or that we're mostly supporting the armed forces of other nations, or acting as part of an international body, or that the war was launched to prevent a humanitarian disaster. Nor does it matter that "U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces." None of those things gets Obama out of the requirements of this legislation, nor is there any hint in its language that they would -- in fact, insofar as it's specified, various provisions are triggered by merely being in another country's airspace or accompanying forces from other nations while they are engaged in hostilities.

The notion that we're engaged in a special kind of post-NATO-handover "hostilities" not covered by the War Powers Resolution is unsupported, and, even ignoring that, President Obama indisputably violated at least one other provision of the legislation before the NATO handover. Then there is the fact that President Obama has requested no funds to pay for this war.

Article I, section 9 of the Constitution, in part, reads, "No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time."

... What I'm wondering is: Where is the money to pay for the Libyan operation coming from? What account is it coming from? Is it coming out of personnel costs--soldiers' pay? Is it coming out of medical care? Is it coming out of the training for our troops? What accounts are being used?

Finally, there are the problems with Obama's intervention that have nothing to do with its dubious legality. "President Obama's policy that he may unilaterally order combat operations in any country to protect the 'universal rights' of foreign citizens is capable of repetition in countries other than Libya," an anti-war lawsuit filed by several members of Congress states, adding that "the decision to intervene in a civil war and expend what is now approaching $1 billion at a time of great economic stress is one that raises a host of concerns for our political system."

Thankfully, Congress is finally starting to recognize as much.

Image credit: Reuters

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.